Bulling v Dartford Gravesham and Swanley Primary Care Trust,

Mrs Bulling, an experienced care worker, was employed at a hospital that cared for vulnerable adult patients. There was an incident at work, which the employer investigated, and following a disciplinary hearing, Bulling was dismissed for misconduct. She brought a tribunal complaint of unfair dismissal, which was rejected.

With reference to British Home Stores Ltd v Burchell, the tribunal was satisfied that the employer had proved that it had dismissed Bulling for a potentially fair reason – misconduct – as it genuinely believed in the misconduct and it had formed that belief on reasonable grounds. The employer’s investigation was found to have shortcomings, in particular the form of the witness statements taken was unsatisfactory. But, in the tribunal’s view, it was as much investigation as was reasonable in the circumstances.

Bulling appealed, arguing that the tribunal had failed to apply the third part of the Burchell test – that, when forming its belief in the employee’s misconduct, the employer had carried out as much investigation into the matter as was reasonable in all the circumstances. Bulling claimed that, had there been a proper investigation by the employer – ie, other witnesses could have been interviewed – then she would have been exonerated.

Appeal

The EAT found that the tribunal had correctly applied the legal test in Burchell. It had focused on the investigation and engaged in a balancing exercise. On the one hand, there had been a poor investigation; on the other, there was what amounted to a finding on largely undisputed material. The EAT preferred the employer’s argument that there was no ground for suggesting that a different investigation or an investigation of other persons present at the time would have reached a different conclusion. The appeal was dismissed.

Comment

The defects in the employer’s investigation in this case were found to be striking. However, the tribunal’s decision was upheld as it could not be said that it was outside the band of reasonable responses for an employer to dismiss in these circumstances.